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English: President Ronald Reagan and Judge Ant...

English: President Ronald Reagan and Judge Antonin Scalia confer in the Oval Office, July 7, 1986 (Photo credit: Wikipedia)

Sometimes those of us who follow American politics should probably explain what all the fuss and feathers is about. On my blog, I’ve been off on my normal mid-February history and lost cause binge. That’s where I stop and remember George Washington and Abraham Lincoln. This year the death of the senior Associate Justice of the Supreme Court, Antonin Scalia, came right in the middle and contributed its share to the melancholy that many of us see. And in talking with Jess this week, I found that few (including her) had much idea at all of who Scalia was. And that’s important to America, and our position in the world.

As some may not know, Supreme Court Justices are appointed for life, subject only to impeachment (for high crimes or misdemeanors, which was the lesson we took from Lord Hastings impeachment, as Great Britain took the lesson that impeachment was too expensive and time-consuming, and outlawed it completely.) In fact, a justice’s pay and benefits can not even be cut, which occasionally causes trouble, when inflation raises its head. 🙂

Antonin Scalia was, without a doubt, one of the best American Jurists of at least the last 75 years, likely one of the best four or five ever. He was what we call an ‘originalist’, one who believes that the Constitution means exactly what the words meant when the founders wrote them down, no more, and no less. He was also a devout Roman Catholic, as befits the son of Italian immigrants. One of the best men appointed anywhere by Ronald Reagan. Reagan tried to get another similar man onto the court as well: Robert Bork, whose name has become a verb that the OED defines as follows:  “To defame or vilify (a person) systematically, esp. in the mass media, usually with the aim of preventing his or her appointment to public office; to obstruct or thwart (a person) in this way.” They should have added unfairly and untruthfully, because to be accurate, none of the attacks on Judge Bork were either.

The way the American system works is rather remarkable. The justices are appointed for life, by the president (one of the reasons for the awe of Washington many of us have, appointing the entire Supreme Court is quite a responsibility in itself). He does this with the advice and consent of the Senate, which means they must confirm the appointee. And so it is rather an awesome power, to appoint a man (or woman) who may sit on the court for 40-50 years after your presidency. I think it is one of the ways the founders sought to avoid novelty. I note that the Senate itself was another, until the early Progressives amended the Constitution to provide direct election of senators. Never think only the British are afraid of mobocracy, as John Adams termed it. Until FDR was president it worked quite well. When he talked about packing the court, the stalwart old judiciary became (in my mind, anyway) much too compliant to the other two branches.

And that was part of Scalia’ charm, his basis in principle, his humor, and his intelligence. Not to mention his way of expressing it, and no I can’t convince myself not to pass along a few, courtesy of The Daily Signal.

  1. “What is a moderate interpretation of the text? Halfway between what it really means and what you’d like it to mean?”
  2. “God assumed from the beginning that the wise of the world would view Christians as fools … and he has not been disappointed. … If I have brought any message today, it is this: Have the courage to have your wisdom regarded as stupidity. Be fools for Christ. And have the courage to suffer the contempt of the sophisticated world.”
  3. “If you think aficionados of a living Constitution want to bring you flexibility, think again. You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That’s flexibility.”
  4. “A law can be both economic folly and constitutional.”
  5. “If we’re picking people to draw out of their own conscience and experience a ‘new’ Constitution, we should not look principally for good lawyers. We should look to people who agree with us. When we are in that mode, you realize we have rendered the Constitution useless.”
  6. “It is one of the unhappy incidents of the federal system that a self-righteous Supreme Court, acting on its members’ personal view of what would make a ‘more perfect Union’ (a criterion only slightly more restrictive than a ‘more perfect world’) can impose its own favored social and economic dispositions nationwide.”
  7. “Bear in mind that brains and learning, like muscle and physical skill, are articles of commerce. They are bought and sold. You can hire them by the year or by the hour. The only thing in the world not for sale is character.”

As valid as those are, and they are very valid indeed, for a stable civil society, I see nothing there that contradicts my belief as a Christian, either. Although applying them to what we Lutherans call, The Second Kingdom can have surprising outcomes when applying originalism to a document like the US Constitution. And so sometimes social conservatives were discomfited by his views.

But there is one other current running here. In case you missed it, we are in the process of electing a president this year as well. It is already a fairly heated campaign, and this is likely to make it worse, not least because in many ways, it is the most important issue in the campaign, although one that wasn’t touched on till this week. The President’s awesome power to appoint will likely to be used quite a lot, 3 more of the justices are nearly (or over) 80 years old. So amongst all the other detritus of what may well be the most divisive administration since Buchanan’s, we have to decide who amongst at least five candidates of varying temper and character we want to appoint to the court that will serve us into the 2030s. I’m not finding that a difficult task, but your mileage may vary.

And there is another factor propelling this year’s election. Both parties have traveled far down the road from what we call their bases believe. I have no idea what the Democrats should do, because, like Jeremy Corbyn, they have already driven over the cliff at high speed.

But on the Republican side, we are witnessing almost an internecine civil war. Leslie Loftis, writing on A Conservative Woman, again like me an American (or ex-pat, I’m not sure) writing on a British site explains it this way:

It’s gut check time for the GOP establishment. Will they really sacrifice principled leadership for the country to save their own insider income streams?

The rally to someone besides the Trump or Cruz window just closed. Christie’s attacks on Rubio in the latest debate and Bush’s sustained campaign against him in recent weeks worked. Rubio crashed to fifth with no complimentary bump for Christie or Bush. All three are done, even if only Christie recognizes it. Kasich had a great night, but he has no money and no ground game beyond last night.

Continue reading Only Ted Cruz can beat Hillary.

I think she has it pretty much correct, and I think I may as well add, that Cruz is one of the most brilliant legal scholars of his generation, while Donald Trump is far more like Hillary Clinton, than he’ll ever admit.

And that’s what all the Stürm und Drang is about.

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